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| Friday, September 26, 2008 |
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Counseling small companies in a troubled economy
If you work with small to mid-sized companies, an upcoming CLE from the TBA's TennBarU and Young Lawyers Division may be for you. There is still time to register for this Oct. 3 program, which will focus on the current economy and how you can guide your business clients through a healthy birth, life or death of a company. The course is also a great value for TBA members, who can use the three prepaid CLE credits that come with their TBA Complete Membership to take the course for free.
Register now or find out more about this program
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TODAY'S OPINIONS
Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format. To search all opinions in the TBALink database or to obtain a text version of each opinion, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at the TBA's Membership Central.
00 - TN Supreme Court
03 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
01 - TN Court of Appeals
03 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR
You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then
open them from there. 1) Click the URL at end of each Opinion paragraph below. This should give you the option to
download the original document. If not, you may need to right-click on the URL to get the option to save the file
to your computer. 2) Do a key word search in the Search Link area of TBALink. This option will allow you to view
and save a plain-text version of the opinion.
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ROBERT EDWARDS v. SATURN CORPORATION
Court: TWCA
Attorneys:
Larry R. McElhaney, II, Nashville, Tennessee, for the appellant Robert Edwards.
Kenneth M. Switzer, Nashville, Tennessee, for the appellee Saturn Corporation.
Judge: CLARK
This workers' compensation appeal has been referred to the Special Workers' Compensation
Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-
225(e)(3) for a hearing and report of findings of fact and conclusions of law. The trial court
determined that: (1) under Building Materials Corp. v. Britt, Employee’s date of injury was his last
day worked before having shoulder surgery, December 15, 2005; (2) Employee's meaningful return
to work was not frustrated by a plant-wide lay-off; and (3) Employee’s permanent partial disability
award should be capped at 1.5 times the medical impairment rating. Because the evidence does not
preponderate against the trial court's findings, we affirm the trial court's judgment.
http://www.tba2.org/tba_files/TSC_WCP/2008/edwardsr_092608.pdf
MICHAEL LIMBAUGH v. MUELLER REFRIGERATION CO., INC.
Court: TWCA
Attorneys:
Terry L. Hill, Nashville, Tennessee, for the appellant, Mueller Refrigeration Company, Inc.
B. Keith Williams and James R. Stocks, Lebanon, Tennessee, for the appellee, Michael Limbaugh.
Judge: WALLACE
This workers' compensation appeal has been referred to the Special Workers' Compensation
Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-
225(e)(3) for a hearing and a report of findings of fact and conclusions of law. Employee sustained
a compensable injury. He subsequently developed a condition known as "winging" of the scapula.
Two treating doctors testified that the AMA Guides did not provide for assigning impairment for this
condition. An evaluating physician agreed that the AMA Guides did not cover the condition, but
assigned 10% permanent impairment to the body as a whole, based upon his experience and
judgment. The trial court awarded 15% permanent partial disability to the body as a whole.
Employer has appealed, contending the evidence preponderates against the trial court's finding. We
affirm the judgment.
http://www.tba2.org/tba_files/TSC_WCP/2008/limbaughm_092608.pdf
LISA MILLER, ET AL. v. M & R CONSTRUCTORS, INC. a/k/a MILLWRIGHTS & RIGGERS
Court: TWCA
Attorneys:
Gordon C. Aulgur, Nashville, Tennessee, for the appellant M & R Constructors, Inc.
Debbie C. Holliman and E. Guy Holliman, Carthage, Tennessee, for the appellee, Lisa Miller.
Judge: WALLACE
This workers' compensation appeal has been referred to the Special Workers' Compensation
Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-
225(e)(3) for a hearing and a report of findings of fact and conclusions of law. This is a suit to
recover workers' compensation death benefits. Employer denied that Decedent's cardiac arrest was
caused by his employment. The trial court found the death to be work-related, and awarded benefits
to the survivors. On appeal, Employer contends that the evidence preponderates against that finding.
We disagree, and affirm the judgment.
http://www.tba2.org/tba_files/TSC_WCP/2008/millerl_092608.pdf
SARA K. RUDER v. JOSEPH R. RUDER
Court: TCA
Attorneys:
J. Steven Anderson, Memphis, TN, for Appellant
Margaret M. Chesney, Memphis, TN, for Appellee
Judge: HIGHERS
This is a divorce case involving the interpretation of a Prenuptial Agreement. Husband/Appellant
appeals the trial court's decision to reimburse certain expenditures made by Wife as "improvements"
to the marital home. Wife/Appellee appeals the trial court's denial of her request for attorney's fees.
Finding no error, we affirm.
http://www.tba2.org/tba_files/TCA/2008/ruders_092608.pdf
STATE OF TENNESSEE V. TONY BEST
Court: TCCA
Attorneys:
Robert L. Jolley, Jr., Knoxville, Tennessee, for the appellant, Tony Best.
Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney
General; Robert Steve Bebb, District Attorney General; and J. Chalmers Thompson and James
Stutts, Assistant District Attorneys General, for the appellee, State of Tennessee.
Judge: OGLE
A Monroe County Criminal Court jury convicted the appellant, Tony Best, of attempt to
manufacture methamphetamine and felony possession of drug paraphernalia. The trial court
sentenced him as a Range I, standard offender to two years and one year, respectively, to be
served concurrently on probation following a thirty-day jail term. On appeal, the appellant
contends that (1) the warrantless search of boxes allegedly belonging to him and the seizure of
his person violated the Fourth Amendment; (2) the State's destruction of evidence violated due
process; (3) the evidence is insufficient to support his convictions; (4) his convictions for attempt
to manufacture methamphetamine and felony possession of drug paraphernalia place him in
double jeopardy for the same conduct; (5) the State erroneously failed to provide a bill of
particulars after being ordered to do so; (6) the prosecutor committed prosecutorial misconduct
in closing argument; and (7) his fines are excessive. Based upon the record and the parties'
briefs, we affirm the appellant's judgment of conviction for felony possession of drug
paraphernalia but reverse his conviction for attempt to manufacture methamphetamine because
the evidence is insufficient to support the conviction.
http://www.tba2.org/tba_files/TCCA/2008/bestt_092608.pdf
STATE OF TENNESSEE v. JONATHAN C. CARR
Court: TCCA
Attorneys:
Vincent P. Wyatt, Nashville, Tennessee, for the Appellant, Jonathan C. Carr.
Robert E. Cooper, Jr., Attorney General and Reporter; Preston Shipp, Assistant Attorney General; Kim Helper, District Attorney General; and Jennifer C. Moore, Assistant District Attorney General,
for the Appellee, State of Tennessee.
Judge: HAYES
The Appellant, Jonathan C. Carr, appeals his felony conviction by a Williamson County jury for the
crime of possession of a controlled substance in a penal institution. T.C.A. Section 39-16-201(a)(2) 1
(2005). On appeal, the following issues are raised: (1) whether the custodial arrest of Carr for a
misdemeanor offense violated this state's "cite and release" statute, Tennessee Code Annotated
section 40-7-118 (2005) and, thus, any evidence obtained as a result of the arrest was inadmissible;
(2) whether Carr's presence in a "booking area" of the jail while in possession of a controlled
substance constituted a "voluntary" act; and (3) with regard to the sufficiency of the evidence: (a)
whether the proof established that Carr was ever "located within an area where prisoners are
quartered" and (b) whether the proof established that Carr's possession was "without the express
consent of the chief administrator" of the institution. After review, we conclude that issues (2) and
(3) are without merit and that issue (1) is procedurally defaulted. Accordingly, Carr's convictions
for possession of a controlled substance in a penal institution and possession of drug paraphernalia
are affirmed.
http://www.tba2.org/tba_files/TCCA/2008/carrj_092608.pdf
STATE OF TENNESSEE v. JOSEPH S. LUCAS, JR.
Court: TCCA
Attorneys:
Dana C. McLendon, III, Franklin, Tennessee (on appeal), and Sharon E. Guffee, Franklin, Tennessee
(at trial), for the appellant, Joseph S. Lucas, Jr.
Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Senior Counsel; Ronald
L. Davis, District Attorney General; and Mary Katharine White, Assistant District Attorney General,
for the appellee, State of Tennessee.
Judge: WILLIAMS
The defendant, Joseph S. Lucas, Jr., appeals the sentencing decision of the Williamson County
Circuit Court. The defendant was indicted, in an open-dated indictment, for the offense of rape of
a child, a Class A felony, which was alleged to have been committed between May 2005 and
September 2005. He subsequently pled guilty to the offense and was sentenced to twenty-five years,
to be served at 100%, in the Department of Correction. The trial court, in imposing the sentence,
applied the 2005 amendments to our criminal code, which became effective June 7, 2005, based
upon the trial court’s finding that the offense occurred after June 7, 2005. On appeal, the defendant
asserts that the trial court erred by: (1) sentencing pursuant to the 2005 sentencing amendments when
the proof failed to establish that the offense was committed after the effective date of the
amendments; (2) applying two enhancement factors absent a jury determination of those facts; and
(3) failing to apply the catchall mitigating factor. Following review of the record, we find no error
and affirm the sentencing decision of the Williamson County Circuit Court.
http://www.tba2.org/tba_files/TCCA/2008/lucasj_092608.pdf
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| TODAY'S NEWS |
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Legal News
TBA Member Services
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| Legal News |
| Lawmakers eye $700 billion bailout plan |
| As federal lawmakers inch toward agreement on an emergency bailout plan for the U.S. economy that could cost taxpayers some $700 billion, government regulators both announced the biggest bank failure ever and offered specifics about the multimillions of dollars that state and local government officials can expect to help struggling neighborhoods get back in the black under legislation enacted earlier.
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ABAJournal.com connects you to the story
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| Judge says House's retrial can go forward |
| U.S. District Judge Harry S. Mattice Jr. on Wednesday denied a request by a lawyer for Paul House, a former Tennessee death row inmate, to bar state prosecutors from retrying him. House's retrial is scheduled to begin in Union County Oct. 14. |
WREG.com carried this AP story
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| Shelby DA's putting heat on hot check writers |
| The Shelby County D.A.'s office is making a renewed effort to prosecute hot check writers and get businesses their money, said Bill Bright, chief prosecutor for the white-collar crime unit during a seminar this week. The office handed out manuals to guide merchants through the process of prosecuting people who have tried to rip them off. |
Find out more in the Commercial Appeal
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| Dickson County gets money to reduce DUIs |
| In the statewide crackdown against drunken drivers, four Dickson County agencies have received state highway grants to beef up DUI enforcement.
The Governor's Highway Safety Office (GHSO) awards grants to counties with a high number of driving under the influence incidents or alcohol-related accidents.
The four agencies that will receive a portion of the $170,000 grant are the Dickson County Sheriff's Office, the Dickson Police Department, the 23rd Judicial District Attorney's office and the White Bluff Police Department. |
The Tennessean has more
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| Jury says school did not violate students' civil rights |
| An all-white federal jury deliberated for about two hours before deciding Blount County school officials didn't violate three black students' civil rights in 2005, the News Sentinel reports this afternoon.
The students sued alleging school officials permitted a racially hostile environment at William Blount High School amid incidents including two "hit lists" written on restroom walls.
"We will file a motion for a new trial," said Michael Shipwash, attorney for the students and their families. "We still have state claims." |
Read the details
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| Students will hear cases along with Supreme Court |
| Students from 16 Davidson County public and private schools will hear oral arguments in three state Supreme Court cases Oct. 2, as participants in a program designed to educate young Tennesseans about the judicial system. Chief Justice Janice M. Holder and Justices Cornelia A. Clark, Gary R. Wade and William C. Koch, Jr., will be joined by retired Justice E. Riley Anderson to hear the cases as part of the SCALES (Supreme Court Advancing Legal Education for Students) program.
Students will hear arguments in one actual case, followed by a question and answer session with the attorneys for both sides in the cases.
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Learn more from the Administrative Office of the Courts
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| TBA Member Services |
| First Tennessee is TBA's preferred provider |
| First Tennessee has crafted a package of discounts to meet the specific needs of Tennessee Bar Association members. Find savings on merchant credit services, checking and savings, financial planning and more |
on the TBA Web site
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Questions, comments: Email us at TBAToday@tnbar.org
About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.
© Copyright 2008 Tennessee Bar Association
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